The complainant requested that the Complaints and Appeals Board (CAB) review the decision of the BBC Trust’s Senior Editorial Complaints Adviser that the complainant’s appeal did not qualify to proceed for consideration on appeal.

Background

The complainant had contacted the BBC after it decided to withdraw the programme Jerusalem: An Archaeological Mystery from broadcast. He had sought information about the editorial reasoning for not broadcasting the programme and who had taken the decision.

When the complainant pressed for further information, he was told:

“…we are not in a position to discuss the specific details at present. As we have said, we are talking to the director about future plans for the film and we will publish the outcome on our FAQ website at http://faq.external.bbc.co.uk/ once these plans are decided. In the meantime we regret there is no more we can add.”

The complainant had initially escalated is complaint to the BBC Trust on 3 June 2013. The Trust Unit considered that BBC Audience Services ought to give more information and, on 18 July, he was sent the following response:

“Ilan Ziv’s film about the archaeology and history of Jerusalem and surrounding areas was acquired by the BBC for transmission during a BBC Four archaeology season. It was found during the re-versioning of the film to 60 minutes in length that it covered broader issues and for that reason, it was decided to withdraw it from this particular season. The BBC is now working with the film maker on a new version of the film and will issue a further statement once that process is complete.”

Appeal

The complainant remained dissatisfied. He appealed to the Trust and stated:

“…the circumstances surrounding the original axing need to be adequately explained. And of course, the more the BBC Executive procrastinates, the greater the impression they have something to hide. To re-iterate: I am seeking a full explanation of what was meant by the phrase “does not fit editorially”. This will obviously entail reference to the specific editorial criteria that the programme was considered against, and the reasons why these criteria were not considered to have been met. I think it would also be useful to know HOW these decisions were made, and by WHOM.”

Decision of the Senior Editorial Complaints Adviser

The Senior Editorial Complaints Adviser (the Adviser) carefully read the correspondence which had passed between the complainant and the BBC, and she acknowledged the strength of the complainant’s feelings. She noted that the Executive said that the programme had been acquired to supplement BBC Four’s season exploring the history of archaeology. She noted that the most recent response from the BBC had elaborated on its first reply and had explained that it was only when the film was being shortened prior to transmission that it emerged the film covered broader issues than had initially been understood and it was subsequently withdrawn from the series about archaeology.

The Adviser noted that the complainant had been told the film would be shown at a later point and had been given a webpage that would be updated once a new date had been confirmed. The Adviser considered Trustees would be likely to conclude that the complainant had been given a reasoned and reasonable response on this point and did not believe it had a reasonable prospect of success, therefore she did not consider it should be put before Trustees.

The Senior Editorial Complaints Adviser understood that the complainant felt frustrated that the BBC had not given further details about the decision. However, she considered there was no obligation on the BBC to do this. She noted that the Royal Charter and the accompanying Agreement between the Secretary of State and the BBC drew a distinction between the role of the BBC Trust and that of the BBC Executive Board, led by the Director-General. “The direction of the BBC’s editorial and creative output” was specifically defined in the Charter (paragraph 38, (1) (b)) as a duty that was the responsibility of the Executive Board, and one in which the Trust did not get involved unless, for example, it related to a breach of the BBC’s editorial standards which did not apply in this case. Decisions relating to what programmes to include within a themed series fell within the “editorial and creative output” of the BBC and were the responsibility of the BBC Executive. The issue of how much detail to provide about the reasons for such decisions was also a matter for the Executive.

Therefore the Adviser considered that it was not appropriate for the appeal to be put before Trustees on this point.

Therefore the Adviser considered the appeal did not have a reasonable prospect of success and should not be put before Trustees.

Request for review by Trustees

The complainant asked Trustees to review the decision of the Senior Editorial Complaints Adviser not to proceed with the appeal. The complainant said that the response from BBC Audience Services had not directly addressed his concerns. The complainant said that he was looking for an explanation of why the programme did not fit editorially, and this was not provided by the BBC’s response that the programme was withdrawn from BBC Four’s archaeology season because it covered broader issues.

The complainant said that by asking Audience Services to provide more information, the BBC Trust had accepted that it had jurisdiction.

The Panel’s decision

The Panel was given the complainant’s appeal to the Trust, the reply from the Senior Editorial Complaints Adviser, and the challenge to the Senior Editorial Complaints Adviser’s decision.

The Panel agreed with the Adviser that decisions relating to scheduling are matters of the direction of the BBC’s creative output and are therefore a matter for the BBC Executive and not the Trust. The Panel noted that the Trust Unit had asked the BBC to provide a further response to the complainant. The Panel was mindful that this was not a decision taken by Trustees and was separate from the question of whether the underlying complaint about the scheduling of this programme would be a matter for the Trust to consider on appeal. The Panel noted that the BBC’s complaints framework states “the Trust is the final arbiter if any question arises as to whether an appeal is for the Trust to determine or not.” Consequently, Trustees did not agree that the Trust Unit’s request that the BBC elaborate upon their previous responses at stage 1 could be construed as an assumption of jurisdiction by the Trustees themselves at the final stage of the complaints process.

Incidentally, the Panel noted that the BBC had confirmed that they plan to broadcast the programme in November 20131.

The Panel therefore agreed that the appeal did not have a reasonable prospect of success and did not qualify to proceed for consideration.

1 The programme was broadcast on BBC Four on Sunday 3 November 2013 with the title

Searching for Exile: Truth or Myth?

–

My prior request for a review:

Dear Ms Buckle,

Many thanks for your response of 13 September.

It will come as no surprise that I find your reasoning unsatisfactory, and I now respectfully request that the Trustees review your decision.

There is much that could be said by way of closing, but I’ll perhaps restrict myself to a couple of salient aspects.

First off, I respectfully note that your reasoning is inconsistent with the Trust’s previous response, which demanded that BBC Complaints provide me with a further response, and that such a response should “directly address [my] concerns”. These “concerns”, you’ll recall, were raised in my email of 31 May, which concluded as follows:

“I am seeking a full explanation of what was meant by the phrase “does not fit editorially”. This will obviously entail reference to the specific editorial criteria that the programme was considered against, and the reasons why these criteria were not considered to have been met. I think it would also be useful to know HOW these decisions were made, and by WHOM.”

The BBC’s most recent response, as already noted, has merely substituted the words “covered broader issues” for “did not fit editorially”. While you evidently believe that this substitution “directly addresses my concerns”, I do not believe that a reasonable person would construe this substitution, viewed in the context of the exchange as a whole, as anything but further evasion. What, pray tell, were the “broader issues” that merited a last minute axing??

Second, in response to your argument that the BBc Executive is not, in the final analysis, obliged to explain its editorial decisions, I respectfully note that such an argument is incongruous with the Trust’s email of 17 July, demanding that BBC Complaints not only respond, but respond in such a manner as to “directly address [my] concerns”. If the substantive issues arising from my complaint didn’t fall within the Trust’s remit, the Trust had no business soliciting such a response from BBC Complaints. By sending the email of 17 July, the Trust was accepting that it had jurisdiction.

First of all can I apologise for the delay in replying to you. Sheer weight of more urgent work I’m afraid.

I don’t see any real contradiction in the two sets of statements that I made about GCHQ this year and back in 2008, although I can see that the news reports differ in tone. But I can assure you that I have always valued and respected GCHQ’s work and have often said so in public. In 2008 I said that it was “right that the rest of us, from the Government down to the individual members of society, should set the limits on what GCHQ is allowed to do with the technology available to it. It’s clear that these measures could help combat terrorism, but I’m very concerned about their civil liberties implications.”

Well, I’m still concerned about the civil liberties implications – and I have very clearly welcomed recent inquiry announcements:

But it’s also become very clear in recent months that limits are being observed and that we have probably the strongest oversight of intelligence of any jurisdiction in the world, placed in statute by a series of laws culminating in the Justice and Security Act 2013. GCHQ is scrutinised by the independent Intelligence & Security Committee (ISC) who can demand answers to questions the intelligence services would not be able to answer in public. Any request to read the content of any individual’s communication has to be signed off personally by the Foreign Secretary or another Secretary of State. Any of these permissions can be reviewed by independent commissioners who must have held high judicial office. Any complaint about almost any aspect of their work can be heard by an independent Tribunal.

The ISC has recently specifically reviewed Tempora to see if any UK law was broken and concluded that none were. You describe Tempora as ‘mass surveillance’ but sheer mathematics should persuade you this can’t possibly be true. How could 5,000 GCHQ employees possibly monitor the contents of billions of messages, even if they did nothing else all day? They have always had the right – under judicial or political oversight – to intercept letters and telephone calls and they obviously need comparable powers to access messages sent via new technology. Otherwise it would be childishly simple for those who would do us harm to avoid detection. And I assume you too would want to detect those people before they commit murder again. This is not some imagined threat: thousands of people really died on 9/11, 7/7, in Madrid and Mumbai and Bali and elsewhere.

It is naturally frustrating and disconcerting not to know what answers GCHQ give to the ISC in private about their work but such a system simply has to operate behind closed doors. I’m afraid we do have to trust the ISC to ask the right questions as you would have to trust those who did this under whatever system you might devise. I agree their questioning in public the other week looked pretty gentle and I would hope that it’s tougher in private. Perhaps we should look at the ISC’s membership. But, looking at it more broadly, I can’t really think what other kind of system could safely set limits on the intelligence services and make sure those limits were adhered to without revealing sensitive secret information to the world.

As for Edward Snowden, he didn’t notify anyone in the NSA of his concerns or go through any of the whistleblowing channels available in the US. He didn’t expose outright government lies as Clive Ponting did back in the 1980s over the Belgrano. He simply revealed thousands of pages of secret information to the media, and through them to hostile governments, terrorists and anyone else who cared to wade through them for useful information. It is now pretty clear he did enormous damage to our national security in the process. And unlike Ponting, he didn’t have the courage to face the consequences in court, taking refuge instead in Putin’s Russia which is currently intimidating and locking up journalists, businesspeople, peaceful environmental protesters, feminist and LGBT activists, artists and rock groups and where the secret intelligence services act with far greater impunity than GCHQ. Some friend of liberty.

I’m sorry again for the delay in replying.

All the best

Martin

—-

Aaaaaaand, my reply:

Hi Martin,

Many thanks for (finally) responding. Since I don’t currently have any “urgent” projects aside from working full-time, looking after two young children, and doing up a house for said children to live in, I thought I’d get back to you sharpish with some comments/further questions… ;-)

1. You say that you “have very clearly welcomed recent inquiry announcements“.

Indeed you have. But transparently *not* because you are “concerned about the civil liberties implications”, but rather because you have already decided that GCHQ has nothing to hide and clearly believe that a stage-managed inquiry will provide a means for GCHQ to clear its name.

2. You say that “we have probably the strongest oversight of intelligence of any jurisdiction in the world“.

If this is so, how do you interpret the internal GCHQ view that the UK’s regulatory regime is a “selling point” to the NSA?

3. You say that the “ISC has recently specifically reviewed Tempora to see if any UK law was broken and concluded that none were“.

As far as I am aware, the ISC has “reviewed” aspects of Prism, not Tempora. Could you please provide the basis of your assertion that the ISC has “reviewed Tempora”?

4. You say: “You describe Tempora as ‘mass surveillance’ but sheer mathematics should persuade you this can’t possibly be true“.

Well, maths never was my strong suit, but common sense tells me you’re either misunderstanding or misrepresenting the nature of the problem. The issue isn’t that GCHQ staff are actively reading everyone’s emails, but that they *could* if they so wished, at the drop of a hat. In other words, it’s the capability itself that’s the problem, as your party seemed to understand back when it evinced some principles…

5. You say that “This is not some imagined threat: thousands of people really died on 9/11, 7/7, in Madrid and Mumbai and Bali and elsewhere.”

Where “else” did you have in mind, exactly? Iraq, perhaps (upwards of one million dead)? Afghanistan (tens of thousands dead)? Waziristan (where civilians continue to be assassinated by US drones, facilitated by GCHQ locational intel)? No, you’re right, the terrorist threat isn’t “imagined”, it’s very real and has been for decades… for those living in resource-rich parts of the world coveted by the US/UK. And to the extent that there *is* a threat to the UK, this is almost entirely a product of UK aggression, as those who have committed acts of violence tell us at every available opportunity. If the UK government were serious about reducing the “terror threat”, it would ameliorate its terroristic foreign policy, not build a “vast, systemic, institutionalized, industrial-scale Leviathan surveillance state“.

6. You say that “it is now pretty clear [Snowden] did enormous damage to our national security…”.

Actually, this is about as clear as mud. Are you willing to adduce any evidence to back up this charge?

7. You say that “[Snowden] didn’t have the courage to face the consequences in court, taking refuge instead in Putin’s Russia…“.

With respect, this is complete nonsense. Snowden had wished to travel out of Russia, but was prevented from doing so as his passport was revoked by the United States government, which – in an attempt to apprehend Snowden – then proceeded to pressure European states to force down the aircraft of the President of Bolivia! Some friend of liberty.

I look forward to hearing from you.

Joe

—UPDATE – 25 January 2014 – Response from Martin Horwood:

Dear Joe

I had a fine Christmas, thanks, apart from a persistent lurgy that had me coughing and spluttering through most of it. I think we may have to draw a line under this conversation eventually but here we go for now, in answer to your specific points:

1. Oh yes I did. “GCHQ should welcome the inquiry and have nothing to fear about it. It is very important in a democracy to know our civil liberties and our privacy are being safeguarded.” Echo 18 October 2013.

2. Your link doesn’t show any evidence that it is a ‘selling point’ for GCHQ and that phrase appears to be from a campaigner not the intelligence agencies themselves. Payments for services provided don’t necessarily do anything more than cover costs.

3. You’re quite right that the specific review that has already concluded was into GCHQ’s use of Prism data not Tempora but the chair of the ISC has clearly indicated to parliament (http://www.theyworkforyou.com/whall/?id=2013-10-31a.333.0&s=%28GCHQ%29+speaker%3A11660#g366.0) that the kind of surveillance involved in Tempora has been scrutinised by the ISC and, by the time of my original email, a specific enquiry by the ISC had been initiated into ‘the appropriate balance between privacy and security in an internet age’, which would undoubtedly cover this aspect of intelligence-gathering.

4. No they can’t. To read the content relating to any individual they need ministerial approval (see above debate again)

5. I think it is both misguided and rather irrelevant to suggest that Al’Qaeda terrorist threats are ‘almost entirely’ a result of US/UK violence. Misguided because, while I may not be any more of a fan of past American foreign policy or the use of UAVs than you are, to use them to excuse Al’Qaeda’s moral responsibility for these mass murders is moral blindness. Irrelevant because, whatever the cause or origin, the fact is that the threat does exist and therefore has to be countered. Or would you really rely entirely on a changed foreign policy to stop Al’Qaeda in its tracks? In which case, what kind of change in foreign policy would ever satisfy them? Presumably one which acquiesced in the violent overthrow of moderate Arab regimes – including democratic ones like Palestine, Lebanon, Turkey and Iraq – in order to establish an extreme and intolerant Salafist caliphate on the model of the Taliban regime in Afghanistan which brutally oppressed women and religious minorities, stopped girls’ education, executed political opponents and petty criminals, detonated historic Buddhist monuments and provided training bases for mass murderers. I don’t think that kind of foreign policy is very likely from any western country in the near future so we’d better not rely on that as a way to defend ourselves against Al’Qaeda.

7. Some friend of liberty! Seeking to apprehend people who have blatantly broken the law and damaged national security and bring them to trial seems pretty reasonable to me. Liberty isn’t unqualified regardeless of what croimes you commit. And Snowden would get a fairer trial in the US courts than Mikhail Khordokovsky did in Russia, or Platon Lebedev, or Sergei Magnitsky, or Alexander Litvinenko, or Anna Politkovskaya, or Pussy Riot, or the Arctic 30, or the ecologist Evgeny Vitishko or the countless human rights activists and journalists and political opponents of Putin who risk their liberty in far more deadly circumstances without running away to other countries. If you want to see who you should be supporting in Russia right now – young people who are showing extraordinary courage in the face of real oppression, take a look at the Liberal Democrats’ sister party’s website: http://eng.yabloko.ru/?p=2884

Happy New Year!

Martin

—
To which I have responded thus:

Thanks, Martin.

Yes, a line must be drawn eventually, but not just yet…

1. In fact, the quote you highlight validates my statement. The crucial words are “…and have nothing to fear about it”, which indicate quite clearly that you have already decided GCHQ has nothing to hide.

2. Look at the article again. The key sentence is: “But in the documents GCHQ describes Britain’s surveillance laws and regulatory regime as a “selling point” for Washington.” Couldn’t be clearer really.

3. Better just to concede the point rather than attempt to wriggle out of your error by referring to woolly statements by the ISC.

5. Again, you’ve largely missed the point, which is that “our” crimes dwarf “theirs”. Resolve this fundamental asymmetry and we’re nearly the whole way in defeating the hardcore “al-Qaeda” ideology such that exists.

6. GCHQ “have told you”? Enough already.

7. So you think that forcing down a Head of State’s aircraft is “pretty reasonable” , do you? Interesting. As for Snowden getting a fair trial in the US, just look at how they treated Chelsea Manning – years in solitary (a form of torture), systematic ritualised humiliations, followed by a long-term prison sentence… for leaking material like this.

When my MP, Martin Horwood, refused (repeatedly) to put the relevant questions to the UK’s Intelligence and Security Committee, there seemed no option but to cut out the middle-man… Viva democracy! ;-)

.

Dear Malcolm Rifkind,

This is a note directed to you in your capacity as Chair of the Intelligence and Security Committee, a position that makes you accountable to the entire electorate.

I have a couple of questions, please:

1. The Daily Mail quotes you as follows: “In general, Snowden’s behaviour has been hugely irresponsible“. Could you explain why you prefaced this opinion with “in general”? Does this mean you believe *specific* aspects of Snowden’s behaviour haven’t been so irresponsible? If so, which bits?

2. The Guardian has revealed that GCHQ believes the UK’s regulatory regime to be a “selling point” to the NSA? A key part of this regulatory regime is obviously the committee you chair, the I&SC. How do you feel about this?

Yours sincerely,

Joe Sucksmith

—

Dear Mr Sucksmith,

Thank you for your email dated 4 August 2013 to the Rt. Hon. Sir Malcolm Rifkind MP, in his capacity as Chairman of the Intelligence. and Security ,Committee of Parliament (ISC). I am replying on his behalf.

As you will know, public comment on intelligence and national security issues, by its very nature, can rarely be detailed and specific. Sir Malcolm will have used “in general” simply to avoid confirming or denying any particular allegation raised by Mr Snowden. Sir Malcolm has also made clear that the unauthorised and irresponsible leaking of classified intelligence documents can provide information that would help those planning terrorist acts to avoid detection.

Turning to your second point, I will not comment on leaked information supposedly attributed to GCHQ. However, the UK’s regulatory regime for its intelligence and security Agencies includes numerous safeguards, including the appointment of members of the judiciary as intelligence commissioners as well as the parliamentary oversight conducted by the ISC. This year, the Justice and Security Act strengthened and extended the powers and independence of the ISC. These reforms have given the ISC even greater authority to carry out oversight of the intelligence and security Agencies, including scrutiny of their operational activities.

ISC Secretariat

—

Many thanks.

I’d like to submit a related query if I may, as follows:

Further to its recent investigations into the NSA’s “Prism” programme, can you confirm whether the ISC will also be investigating GCHQ’s “Tempora” programme?

For info, I asked my MP (Martin Horwood) to make this enquiry on my behalf some weeks back, but his office refuses to respond on the matter. I therefore have little choice but to submit the enquiry direct.

Best regards,

Joe

—

Dear Mr Sucksmith,

Thank you for your further email of 30 August 2013, asking an additional question about the investigations being carried out by the Intelligence and Security Committee of Parliament (ISC).

I can only re-iterate that I will not comment specifically on leaked information supposedly attributed to GCHQ. However, the Committee has announced that it is considering further whether the current statutory framework governing access to private communications, including internet-based communications, remains adequate. The Committee will therefore be examining further the complex interaction between the Intelligence Services Act, the Human Rights Act and the Regulation of Investigatory Powers Act, and the policies and procedures that underpin them.

ISC Secretariat

—

Many thanks. I have two additional follow-ups, which I’m sure you’ll be only too willing to address given interactions like this are the lifeblood of democracy.

1. You say that you “will not comment specifically on leaked information supposedly attributed to GCHQ”. Why, then, did the ISC see fit to publically comment on GCHQ’s use of intelligence gained through “Prism” – another clandestine and highly controversial SIGINT programme, details of which were revealed by Edward Snowden? It would seem entirely inconsistent to comment on one programme (Prism), but not the other (Tempora).

2. You say that the ISC will be “considering whether the statutory framework governing access to private communications, including internet-based communications, is adequate”. Does not the intelligence watchdog within a democratic state have a more substantive responsibility to pass judgement on whether a heretofore clandestine mass surveillance programme is ethical/moral, as distinct from merely legal?

Recently, as I was doing a rare spot of ironing, I caught part of a TV discussion between John Simpson and a BBC anchor about, amongst other things, the US government decision to open negotiations with the Taliban. In the context of this discussion, Simpson mentioned the “Vietcong”, or “Viet Cong”, on several occasions, as an example of – inevitably – an “enemy” with whom the US was eventually forced to negotiate.

Recalling from my university days that the term “Viet Cong” was anything but neutral, I decided to write to Professor Ngo Vinh Long (of the University of Maine) to establish the facts concerning the term’s origins…

.

Dear Professor Ngo Vinh Long,

Please excuse the unsolicited mail, but I wondered if you might be able to shed some light on the origins of the label “Vietcong”, which has entered the (western) vernacular as a descriptor for the Vietnamese who fought against the US during the “Vietnam war”?

My current understanding is that the label derives from a longer phrase “Viet Gian Cong San”, originally used by the US-backed Diem regime to tar all those within, or sympathetic to, the NLF as “communists”. But is this accurate?

With best wishes,

Joe Sucksmith

—

Dear Mr Sucksmith,

The term Việt Cộng was invented by Colonel Nguyễn Văn Châu, director of the Central Psychological War Service of the South Vietnamese Armed forces from 1956 to 1962. I knew him personally because from 1959 to late 1962 I was also a military map maker, making 1/25,000 military maps of the entire South Vietnam and parts of Cambodia and Laos. At that time there was also a “Communist Denunciation Campaign” (Phong trào Tố Cộng) and Colonel Châu intentionally coined the term as a homonym for “Diệt Cộng” (Annihilate the Communists) since the D and V are pronounced like a Y in Southern accent. He was very proud of this play on words and kept on repeating it to me and others many times.

Colonel Châu gave a detailed interview on this and other psychological warfare techniques that he and the Saigon regime used to Richard Dudman, known as the dean of American journalism (St. Louis Post-Dispatch, Sept. 24, 1972.)

From what I know, I don’t think the term comes from Việt Gian Cộng Sản, which is certainly never used in any official documents from South Vietnam.

Regards,

Ngô Vĩnh
—

Dear Ngo Vinh,

Many thanks for the response, which I find fascinating. Perhaps I could ask a brief follow-up…

What term is used most often within Vietnamese literature to describe the South Vietnamese who resisted the US-backed Diem regime, and later invading US forces?

Joe

—

The term “quân kháng chiến” (resistance fighters) and “quân giải phóng” (liberation fighters) were used the most.

Ngô Vĩnh
—

Many thanks. Does it follow from this that most Vietnamese would consider the term “Viet Cong” to be essentially pejorative? Or just merely inaccurate?

Joe

—

Pejorative. The majority of the people fighting with the Front for the National Liberation of Vietnam did not consider themselves communists in anyway. They considered themselves nationalists or patriots. That was one of the reasons why Hanoi disbanded the PRG (Provisional Revolutionary Government, which composed of the “NLF” and other groups) almost immediately after “Liberation.”

Ngô Vĩnh

———-

So there you have it: “Viet Cong” – a pejorative term, coined by the propaganda wing of the US-backed Diem regime, and designed to characterise those resisting US-backed aggression as “communists”.